- JUDGMENT No. 4491/8 2hes CATCHWORDS ADMINISTRATIVE LAW - Judicial review - Australian Federal Police - Appeals against selection for promotion - Decision of Appeals Board - Whether Board had failed to make full inquiries into the claims of the parties to the appeals - Whether a breach of the rules of natural justice - Whether there was evidence to justify the making of the decision - Whether a failure to take iunto account relevant considerations - Whether irrelevant considerations taken into account. Administrative Decisions (Judicial Review) Act 1977 (Cth), s.5 Australian Federal Police Act 1979 (Cth), ss.25, 36 Australian Federal Police Regulations, regs 26, 31, 32 RAYMOND JOHN COOPER v. CLARENCE LINDSAY HERMES & ORS No. ACT G 16 of 1986 Neaves J. 15 September 1987 Canberra ot ' 2 an IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY No. ACT G 16 of 1986 DISTRICT REGISTRY wee wrwewrvrws GENERAL DIVISION BETWEEN : RAYMOND JOHN COOPER Applicant AND: CLARENCE LINDSAY HERMES, RODNEY GEORGE LEFFERS and RICHARD EDWARD DIXON constituting the Appeals Board established under the Australian Federal Police Regulations First respondents WILLIAM ANTHONY TAYLOR Second respondent MINUTE OF ORDER JUDGE MAKING ORDER Neaves J. DATE OF ORDER : 15 September 1987 WHERE MADE : Canberra THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondents' costs of the application, including reserved costs. Note: Settlement and entry of orders 1s dealt with in Order 36 of the Federal Court Rules. ~— IN THE FEDERAL COURT OF AUSTRALIA ) ) AUSTRALIAN CAPITAL TERRITORY ) ) No. ACT G 16 of 1986 DISTRICT REGISTRY ) ) GENERAL DIVISION } BETWEEN : RAYMOND JOHN COOPER Applicant AND: CLARENCE LINDSAY HERMES, RODNEY GEORGE LEFFERS and RICHARD EDWARD DIXON constituting the Appeals Board established under the Australian Federal Police Regulations First respondents WILLIAM ANTHONY TAYLOR Second respondent CORAM: Neaves J. DATE: 15 September 1987 REASONS FOR JUDGMENT By his .amended application dated 18 December 1986 as further amended on 30 January 1987, Raymond John Cooper ("the applicant") seeks an order of review under the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act") in respect of the decision of the Appeals Board ("the Board") established under the Australian Federal Police Regulations and constituted by Clarence Lindsay Hermes (Chairman), Superintendent Rodney George Leffers and Chief Superintendent Richard Edward Dixon, the first respondents, allowing an appeal by the second respondent, William Anthony ape stent wees ee - ' te Baa a v epee a 2. Taylor, against the selection of the applicant for promotion to a vacant position, numbered 0140, within the Internal Investigations Division (Canberra) of the Australian Federal Police with the rank of Chief Inspector. The vacancy was advertised in Australian Federal Police Gazette No.21 of 3 October 1985. The applicant, who held the rank of Inspector and was serving with the Australian Civilian Police Detachment being part of the United Nations Peace-Keeping Force in Cyprus, applied for promotion to the vacancy. He was selected for promotion to the position, his selection being notified in Australian Federal Police Gazette No.24 of 14 November 1985. Appeals against his selection for promotion were lodged by nine officers including the second respondent. However, only eight of those appeals, including that of the second respondent, proceeded. Those appeals were heard by the first respondents and on 14 February 1986 they unanimously determined to allow the appeal of the second respondent and to recommend to the Commissioner of the Australian Federal Police that the second respondent be promoted to the position. The Relevant Legislative Provisions Section 25 of the Australian Federal Police Act 1979 (Cth) ("the Police Act") provides, inter alia, that, subject to the Act, the Governor-General may, by Commission, on the recommendation of the Commissioner, or, if the Commissioner is authorized by the Governor-General in writing to make appointments under the section, the Commissioner may, by ac at ee Sr re -- 3. Commission, promote a person who is a commissioned police officer to a position within a higher commissioned rank, being a position within a rank that the person is, in accordance with the regulations,competent and qualified to hold. Section 36 provides: "(1) In the selection of members for promotion, consideration shail be given to the relative efficiency of the members who apply for promotion. (2) For the purposes of sub-section (1), the efficiency of a member, in relation to an application for promotion to a position, shall be determined by a consideration of the experience, qualifications and training of the member and of any other factors that are relevant to the discharge by the member of the duties of the position." By virtue of reg.5(2) of the Australian Federal Police Regulations a person is competent and qualified to hold a position within the rank of Chief Inspector if the person holds' the rank of Inspector, has successfully completed the training course or courses that the Commissioner has determined to be the qualifying course or courses in respect of the rank of Chief Inspector and possesses the skills and experience specified in the selection criteria in relation to the position as being the skills and experience required for the proper performance of the duties of the position. Regulation 10 requires the Commissioner to prepare in relation to each position within each rank - a (a) aduty statement describing the duties to be performed by persons occupying the position; and (b) selection criteria describing the particular skills and experience required for the proper performance of the duties of the position. Where a position within a commissioned rank other than the rank of Inspector becomes vacant or is expected to become vacant, the Commissioner is to cause to be published in the Australian Federal Police Gazette a notice inviting commissioned officers who satisfy the requirements prescribed for the position to apply for promotion to the position (reg.15(1)). An application for promotion is to be in writing and is to reach the address specified in the notice within twenty-one days after the date of publication of the notice (reg.15(3)). The Commissioner is to select one of the applicants for promotion to the position (reg.16) and cause notice of his decision to be published in the Australian Federal Police Gazette (reg.17). A member who submitted an~ application for promotion to the position and who, having regard to the provisions of s.36 of the Act, considers that he has a better claim to promotion to the position than the member selected may appeal to the Appeals Board established under reg.14A from the decision of the Commissioner to select that person for promotion to that position (reg.26(1)). The ground upon which an appeal may be brought is that, for the purpose of promotion to the relevant position, the appellant is more efficient than the member selected for promotion (reg.26(2)). The appeal may be accompanied by a written statement of the facts that the Te es a tt co ee er cee et tao oats appellant wishes the Board to take into consideration in deciding the appeal and any documents that he considers relevant to the appeal (reg.26(2)(d)). The person selected for promotion may also submit written material to the Board (reg.25C). Provision is made by reg.27 for the Commissioner to be notified of any appeal and for him to submit to the Board a written statement in support of his decision and any documents that he wishes the Board to take into consideration in deciding the appeal. Regulation 14C(1) provides: "(1) The Board shall consist of the following members: (a) a President; (b) such number of Deputy Presidents, not exceeding 7, as the Minister may from time to time determine; (c) not more than 16 persons nominated by the Commissioner; (d) not more than 36 persons nominated in accordance with the rules of the association." The reference to "the association" is a reference to the association of members of the Australian Federal Police formed in accordance with Part IV of the regulations. For the purposes of an appeal the Board is to be constituted by the President or a Deputy President, a person referred to in reg.14C(1)(c) and a person referred to in reg.14C(1)(d) (reg.14C(4)). ae 6. Regulations 31 and 32 provide: "31. For the purpose of determining an appeal froma decision of the Commissioner to select a member for promotion to a _ position within a prescribed rank, the Board - (a) shall have regard to the relative efficiency (within the meaning of section 36 of the Act), for the purpose of promotion to the position, of the parties (other than the Commissioner) to the appeal at the time of the decision of the Commissioner; (b) shall take into consideration - (i) all written statements and documents submitted, under this Division, to the Board by the parties to the appeal; (i1) the answers given, and any oral statement made, by each party at the hearing of the appeal; and (1lii) if a party to the appeal (other than the Commissioner) is at the time of the hearing of the appeal absent from Australia in connection with the performance of his or her duties and the party was, before his or her departure from Australia, . interviewed under Division 2 by ~ an interviewing panel ~ the record made by the panel of their 1 assessment in accordance with regulation 19 of the efficiency of the party; (c) may obtain the views of any referee nominated by a party to the appeal other than the Commissioner; and (d) shall make full inquiries into the claims of each party to the appeal. 32. (1) Where, on an appeal to the Board in relation toa proposed promotion to a position within a prescribed rank, the Board is satisfied that full inquiries have been made into the claims of each party to the appeal, then - (a) (b) (2) (a) (b) 7. if the Board, having regard to the provisions of section 36 of the Act, 1s satisfied that the appellant has a better claim to promotion to that position than the member who has been selected for promotion, the Board shall, subject to sub-regulation (2), allow the appeal and recommend to the Commissioner that the appellant be promoted to that position; and in any other case - the Board shall dismiss the appeal and recommend to the Commissioner that the member selected by the Commissioner for promotion to that position be so promoted. Where - there are 2 or more appellants froma decision of the Commissioner to select a member for promotion to a position within a prescribed rank; and the Board is satisfied that 2 or more of those appellants have a better claim to promotion to that position than the member selected for promotion, the Board shall - (c) (d) For the purpose of these regulations, the rank of Chief allow the appeal of only one of the appellants referred to in paragraph (b), being the appellant whom, having regard to the provisions of section 36 of the Act, it considers to have the better or best claim to promotion to that position, and recommend to the Commissioner that that appellant he promoted to that position; and dismiss the appeal of the other appellant or of each of the other appellants, as the case may be." Inspector 1s a prescribed rank (reg.25B). History of the Application The application for an order of review was filed on 11 April 1986. The application was, however, filed outside ~ eer 8. the relevant period prescribed by s.11(3) of the Judicial Review Act necessitating an application for an extension of time within which to institute the proceeding. An appropriate extension of time was granted by the Court on 29 August 1986, The application as originally filed identified three grounds upon which the applicant relied. Two of those grounds alleged particular respects in which it was asserted that there had been a failure to give the applicant an opportunity to comment upon certain material before the Board and thus a breach of the rules of natural justice. The third ground alleged that there was no evidence or other Material to justify the making of the decision in so far as it was based upon a finding that the second respondent had demonstrated management and organisational skills at a higher level than the applicant. When the application came on for hearing on 11 December 1986, the applicant sought and was granted leave to amend the application by adding a further ground of appeal. As the hearing progressed, it became apparent that the application as so amended did not raise a number of issues upon which the applicant sought to rely and, after the luncheon adjournment and after the affidavits filed on behalf of the parties had been read and certain oral evidence had been adduced, the applicant sought leave to further amend the application by adding additional grounds. Soe TI 9. The application for leave to further amend the application was strenuously opposed by the respondents. It was also submitted on their behalf that, if leave to further amend were granted, the respondents would require an adjournment in order to determine whether further evidence should be adduced in relation to the additional grounds proposed. I determined, on balance, that leave should be granted and that the further hearing be adjourned until 29 January 1987. I ordered that the applicant pay the respondents' costs of the proceedings on 11 December 1986. An amended application was filed on behalf of the applicant on 23 December 1986 identifying eight grounds. At the conclusion of the evidence on 30 January 1987 an application was made for leave to make yet a further amendment to the application to add a ninth ground. Leave was granted anda document setting out the further ground was filed on the same day. The Basic Facts Prior to the members of the Board commencing to interview the applicant and the appellants against his selection for promotion, the Hoard had received, inter alia, the following documents - (a) A job profile, including a duty statement, in respect of the subject position. ares pe ras ee en ener oss —- oa TA ae Le 10. (b) A document setting out the selection criteria appropriate to the position. {c) A statement dated 27 November 1985 by the applicant in support of his selection for promotion. (d) A statement by each appellant, together with supporting documents, setting out the matters which that appellant wished the Board to take into consideration in deciding his appeal. (e) Two statements dated December 1985 signed by Assistant Commissioner C.S. Winchester, one commenting on the applicant's selection for promotion and the other commenting upon the second respondent. (f) Personal record summaries relating to the applicant and to the second respondent. (g) A letter concerning the applicant dated 30 October 1985 and signed on behalf of Chief Superintendent W.N. Williams, the officer in charge of the Australian Civilian Police Contingent in Cyprus, and a note attached to the document indicating that the letter had not been received in Australia in time to be considered by the selection panel. The members of the Board met to consider the appeals on 5, 6 and 7 February 1986. The applicant was interviewed on 5 February 1986, he being interviewed prior to any of the appellants. At the commencement of the interview the applicant handed certain documents to the members of the Board. Those documents consisted in the main of copies of a number of commendatory references and reports in relation to the applicant's performance of various duties. Also included was a Jaist of six police officers nominated by the applicant as referees. The six referees were Chief Superintendent A. Brown, Superintendent L.C. a ll. Worthy, Superintendent K. Harley, Chief Inspector R.J. Downing, Superintendent J. Spurling and Assistant Commissioner C.S. Winchester. At the conclusion of the applicant's interview, which lasted for approximately one and a half hours, the applicant made available to the Board a further reference on which he relied and a copy of the course assessment dated 15 dune 1984 made of the applicant at the conclusion of his attendance at the Fifth Australian Federal Police Officers Course. Subsequently the Board made inquiries concerning the applicant from Chief Superintendent Bruce and Chief Superintendent Brown. The Board also made inquiries concerning the appellants, including the second respondent. On 14 February 1986 the members of the Board signed a document _ setting out their reasons for reaching the conclusion that the appeal of the second respondent should be allowed. It appears from that document that the Board was of opinion that the applicant and the second respondent were "the main contenders for the position". That part of the document that dealt with the1r respective claims for the position, although lengthy, should be set out in full. It is in the following terms: ' "R.J. Cooper and W.A. Taylor After a careful analysis of the claims of others un the field the Board had no difficulty in oreo ~~. ceeded ee ee wees mee 12. concluding that these two officers were the main contenders for ~the position. We therefore propose to consider the claims of the _ two together and to point to the qualities which we regard as giving Taylor the advantage. Courses of Study Cooper completed his Detective Training Course in 1976 and his Commissioned Officers examinations un 1983. He was promoted Inspector in July 1984. He has not, however, completed a Drug Investigators Course, a Commercial Crime Course nor an Intelligence Analysts Course. The Board notes his explanation that because he was in middle management at the time these courses became available it was 'too late' for him to participate. As the Selection Committee has properly noted he has had operational experience in narcotic investigations and fraud work. In 1984 he completed the AFP Officers Course which had significant Management and supervision elements. Taylor completed a National Drug Enforcement Officers Course in 1976 anda Drug Enforcement Intelligence Analysts Course in 1979. In 1980 he did a Stage One Detective Training Course and Stage Three course also in 1980. He was Dux of the latter course. In 1983 he did the First Level Management Course and in 1984 the Fifth Commissioned Officers Course. He was promoted Inspector in April 1984. He has not completed a Commercial Crime Course. In terms of meeting the selection criteria under this heading Taylor must be seen as having some advantage. Police Experience Cooper joined the former ACT Police in 1969. in 1974 he went to the CIB in Canberra after 5 years un uniform duties. In his criminal investigation work in the ACT he was involved at various times in all the most serious crimes. In November 1979 he became a senior member of a special task force engaged in complex investigations into medical fraud. In that exercise he was a Detective Senior Sergeant and at times Acting Station Sergeant with some 16 to 18 men working under his direction, some of them at the same rank as himself. The work of this special squad involved investigations in three Regions outside the ACT. He streamlined procedures in this area of police anvestigation and developed a specialised training course for medifraud squads. He gave evidence at various times before a Joint Parliamentary Accounts Committee. on a af ote a. poe re Dr ag ee a eo ep y 13. In April 1983 Cooper transferred from CID to Eastern Region attached to the Administration Section. In March 1984 he transferred back to Canberra where, after completion of his Officers Course he was attached to Drug Operations Branch within the CID. He described his work in that Branch as being concerned with coordination and liaison with overseas forces. In June 1985 he went to Cyprus as a member of the 23rd UN Peace Keeping Force returning to Australia in December 1985. Taylor had some 8 years exper1ence as a Military Policeman in the Australian Army including service in Malaysia and Vietnam where he held the rank of Sergeant. In 1971 he joined the Northern Territory Police Force. After a short period in Darwin he served at Nhulumbuy firstly in uniform and then in plainclothes. His was a one-man post and he serviced a wide area of Arnhem land. In March 1976, with the rank of Sergeant, he became OIC Police Drug Squad in Darwin. In November 1978 he resigned from the NT Police and joined the Australian Narcotics Bureau as a Senior Narcotics Agent in Perth. On the amalgamation he worked in Western Region Drug Squad as Acting Senior Sergeant in the combined Drug Enforcement Unit in the NT. Later he served as Station Sergeant 1n Southern Region Drug Unit and was Acting Inspector in charge of that Unit from August 1983 to April 1984 and for some 3 weeks of that time as Acting Chief Inspector. In September 1984 he became Officer in Charge, Special Investigation Unit (Organised Crime), Eastern Region. In November 1984 he went to IID and he remains there as Acting Chief Inspector. Looking at that outline of the police experience of these two officers the Board is at something of a loss to follow the Selection Committee's statement that Cooper 'has experienced a broader range of duties and has greater experience in command and control than other applicants'. Certainly that may be so in respect of other appellants but the Board does not accept it as being so in the case of Taylor. True it is that Taylor has had a career strongly oriented to drug crimes but he certainly cannot be said to he lacking in general police experience. In the geographical sense he can claim wide experience in the AFP. He knows the national scene. The statement that he has not had experience with the AFP in uniform work is true as far as it goes but it appears to the Board to do less than justice to his police career looked at as a whole. vere, 14. Whatever else may be said the Board certaznly does not see the selectee having any advantage over the appellant in terms of police experience. Skill Requirement In respect of management and organisational skills the Board considers that the appellant Taylor has demonstrated this at a higher level than has the selectee. However 1t is under the heading of demonstrated interpersonal skills that the very clear advantage that Taylor enjoys emerges. Chief Superintendent Bruce has said of him 'He has in particular demonstrated the ability to liaise directiy with the Ombudsman's Office and to maintain requisite good relations with that important function of IID'. In respect of the selectee the Board had before it the report of Chief Superintendent Williams dated in Cyprus on 30 October 1985. Williams acknowledged that Cooper had served only a short time with him but said 'The Inspector has a reputation for impetuosity and a degree of abrasiveness in his relations with others. He tells me that he recognises his impetuosity and that he has worked hard to control it. He considers he has made gcod progress in this regard. I suggest that he still has some progress to make in this area. However in fairness I believe that since his arrival in Cyprus there has been a failure to discuss these issues with him or to counsel him on his progress'. Later he added, 'I am confident that with proper guidance he will learn to relaxa little and adequately (control) his impetuosity.' As against this the Board gave careful regard to what can only be called a glowing reference from Lieut. Col. Bujold, Commander Section Four, UNFICYP. He speaks in particular of Cooper's 'ingenuous (sic) ability to interface with people' and elsewhere of 'his pleasant personality, self assured bearing and confidence (which) allow him to earn the respect of all who come in contact with him.' The Board examined Cooper's assessment on the Fifth AFP Officers Course dated 15 June 1984 where it is said, inter alia, 'The Station Sergeant has a very positive outlook and unless controlled can tend to give the impression of dominating within the Syndicate to the detriment of himself and the work of the Syndicate. "He has made real attempts to control this tendency but 15. occasionally assumes an incorrect and dominant attitude when working in a group'. No complaint was made about his social behaviour. He was described as ''mixing easily' and being 'attentive to visitors'. At another point it was said of him 'He is generally quick to form a view and this needs to be tempered and his development will be enhanced as he becomes more used to tempering a tendency to make quick decisions with a more reflective approach in appropriate circumstances'. He was elsewhere described as having 'a dominant personality'. Naturally the Board brought this matter up for the selectee's comments. He agreed that at times he had been 'abrupt and aggressive' in the course of duty but said that in one instance at least 'TI knew I had to do it to get the job done'. He went onto say 'I have modified this since my days at the College'. It appeared to the Board that this subject rankled with the selectee and he became rather defensive complaining that it would seem that he was not being given the chance to live the reputation down. Although he did not claim that he thought Williams wrote what he said with any malice, he made the point that 'on Cyprus I was a designated officer and had to investigate something about Williams'. That matter was not taken further. The Board decided to check with a senior officer with current experience of this aspect of the selectee's character. The Board was told by Chief Superintendent Bruce that he was 'abrasive but not to the point of being aggressive and somewhat ~ immature considering his experience'. Chief Superintendent Brown said that he had recognised. this shortcoming but handled it by 'keeping him down under control'. The Board has gathered from the evidence put before it that the man for the position in question needs very sound judgment and with a capacity to deal sensitively with difficult and complex matters. The Board 1s far from saying that an IID investigator has to 'go soft' because he is dealing with his peers but whilst conducting his enquiry with fairness and firmness he would desirably avoid being either impetuous, abrasive or abrupt. Unfortunately the Board is by no means confident on its own view of the selectee that he would eschew conduct of that kind. The Board was also told of the way in which liaison with the Ombudsman's office had to be fla QT te wre re ree ee y lat paenpananeeel ee a re PT gtr ee sete oe Vy + 16. handled and it was left in no doubt that negative personal qualities of the kind mentioned would do nothing to contribute to the desirable working relationship. Having said that, 1t would not seem to the Board to be necessary to make any further comparison between the two. The appellant Taylor presented as a dedicated and mature man, enthusiastic about the work he is doing. The Board's impression of him was supported by referees in glowing terms. Having made the point about what the Board sees as a very significant deficiency in the selectee's interpersonal skills 1t would simply add that even if the disparity in that regard was not present it would still be of the view that Taylor's qualities made him the more suitable man for the job." The Grounds Relied Upon The principal submission advanced on behalf of the applicant was that the Board had failed to carry out the duty imposed upon it by reg.31(d) to make full inquiries into the claims of the applicant and the second respondent. The particulars given of this ground may be summarised as follows: (a) The Board failed to inquire sufficiently into the relative experience of, and the courses undertaken by, the applicant and the second respondent; {b) The Board inquired of Chief Superintendent Bruce about the applicant under the misapprehension that he was one of the applicant''s referees; (c) The Board failed to inquire into the accuracy of the matters raised in Chief Superintendent William's assessment of the applicant; (d) The Board failed to make the inquiries suggested by Chief Superintendent Williams; why ——r- a SR ee ne eee mcm s (e) 17. The Board failed to make inquiry of the Ombudsman concerning any relationship which the applicant may have had with him; (£) The Board failed to inquire as to the acting rank held at various times by the applicant and the second respondent; and (g) The Board falled to inquire of more than one of his referees and, it having been suggested by that referee (Chief Superintendent Brown) that information be obtained from another referee (Superintendent Worthy), the Board failed to do so. It was also submitted that a breach of the rules of natural justice occurred in connection with the making of the decision (Judicial Review Act, s.5(1)(a)). relied upon may be summarised as follows: The matters (a) (b) (c) The Board failed to give the applicant a real opportunity to put his own case; The Board failed to put to the applicant, or give him the opportunity to comment upon - (i) the relative merit and status of ~ the courses of study undertaken by the applicant and the second respondent; (ii) the relative police experience of the applicant compared to that of the second respondent; and (iii) the relative management and organisational skills of the applicant compared to those of the second respondent; The Board took into account material of an adverse nature relating to the applicant's character and his "interpersonal skills" without disclosing or referring that material to the applicant or providing him with the opportunity of commenting on or refuting such material; and to (da) Counsel for the applicant also submitted that there was no evidence or other material to the decision (Judicial Review Act, s.5(1)(h)). 18. The Board failed to give the applicant a real opportunity to know and answer the case against him in that the applicant had no adequate opportunity to meet the matters raised in the assessment of Chief Superintendent Williams or the assessment dated 15 June 1984 relating to the applicant's attendance at the Fifth Australian Federal Police Officers Course. given of this ground were - {a) (b) (c) It was also submitted on behalf of the applicant that the making of power in that Following relevant considerations (Judicial Review Act, ' That there was no material before the Board to support the conclusion that the second respondent had demonstrated management and organisational skills at a higher level than the applicant; That there was no material before the Board to justify the statement that the second respondent had been at a higher rank than had the applicant; and That there was no material before the Board to support the conclusion that the second respondent had demonstrated greater efficiency within the meaning of s.36 of the Police Act. the Board failed to take into account the s.5(1)(e) read with s.5(2)(b)) - (a) The fact that at the time of the hearing before the Board the second respondent was not acting as Chief Inspector in the justify the making of Particulars the decision was an improper exercise of is 19. Internal Investigations Division (Canberra) of the Australian Federal Police; (b) The fact that at that time the applicant was acting in that position; (c) The fact that the applicant had acted in ranks above that of Inspector, namely the rank of Chief Inspector and the rank of Superintendent; (d) The police experience of the applicant; and (e) The management and organisational skills and experience of the applicant. A further submission on behalf of the applicant was that the making of the decision was an improper exercise of power in that irrelevant considerations were taken into account in the exercise of the power (Judicial Review Act, 5.5(1)(e) read with s.5(2)(a)). The irrelevant considerations relied upon were - (a) That the second respondent had acted in a higher rank than had the applicant; and ~~ (b) The appraisal of Chief Superintendent Bruce, being an appraisal made after 14 November 1985. Failure to Make Full Inquiries The question whether the Board failed to make full inquiries into the claims of the applicant and the second respondent must be considered against the background of the judgment which the Board was called upon to make and in the light of the inquiries which it, in fact, made. The judgment it had to make concerned the relative efficiency camel ee eee oe 20. (within the meaning of s.36 of the Police Act), for the purpose of promotion to the position in question, of the applicant and the appellants. As has already been mentioned, the reasons given by the Board for its decision Make clear that, as a result of its deliberation upon the material before it, the Board was of the view that the applicant and the second respondent were the main contenders for the position. Both the applicant and the second respondent, in the Board's judgment, possessed the necessary qualifications and experience to enable them efficiently to discharge the duties of the position. What remained was to rank those two officers in terms of their efficiency for the position. The Board resolved that issue to its satisfaction by reference to what it described as the respective interpersonal skills of the contenders, an expression derived from, and to some extent explained in, the selection criteria for the position. The Board conducted its inquiries by reference to those selection criteria. It is unnecessary to set them out in full, their general nature being sufficiently apparent from the following headings under which the criteria are arranged: Educational qualifications Courses of study Police experience Other relevant experience - $k111 requirement . Knowledge requirement. eo 8 8 8 21. Under each of those headings matters were specified as being either essential or desirable. Thus, under the heading "Skill requirement", essential requirements were listed as management and organisational skills, demonstrated interpersonal skills e.g. liaison/supervision, high standard of written and verbal communication skills and proven investigative skills. Demonstrated skills in command of a Branch was specified as being desirable. The first of the applicant's complaints under this head was that the Board failed to inquire sufficiently into the relative experience of, and the courses undertaken by, the applicant and the second respondent. As to courses of study, the personal record summary relating to the applicant which was before the Board listed the courses which he had completed. That subject was also dealt with in the statement dated December 1985 signed by Assistant Commissioner Winchester commenting upon the applicant's selection for promotion and in the applicant's statement dated '27 November 1985. The matter was also the subject of discussion during the course of the applicant's interview by the Board. It is clear, on the evidence, that the Board accepted that the applicant had completed the courses, or their equivalent, specified as essential in the relevant selection criterion. It is also clear that the Board accepted the applicant's explanation of the reasons why certain of the courses specified therein as desirable had not been completed by him and that it regarded him as 22. having compensating experience in the areas covered by those courses. Comprehensive information as to the courses that had been completed by the second respondent was also before the Board, being contained in his personal record summary, in the statement made by Assistant Commissioner Winchester concerning him and in his statement setting out the matters he wished the Board to take into account in deciding his appeal. The question was also adverted to in the course of the second respondent's interview by the Board. In the light of this material and of the circumstance that two members of the Board were very experienced senior police officers, I am unable to accept the argument that the Board failed to inquire sufficiently into the courses undertaken by the applicant and the second respondent. I have" reached a similar conclusion in relation to the submission that the Board failed to inquire sufficiently into the relative experience of the applicant and the second respondent. The experience of both officers was extensively canvassed both in the documentary material before the Board and in the interviews which each of the officers had with the Board. As to the second of the matters upon which the applicant relied under this head, it is unnecessary to do Fs tea lene ead dtenainciieos ame meeaneeetananee nen commer tocmeetemmaarematmonael y y So ee een en 4 ok * ' - \ 23. more than state the proposition to reject it as being untenable. It 1s conceded, indeed asserted, that the Board made inquiries concerning the applicant of Chief Superintendent Bruce yet it is said that the Board failed to make full inquiries because it was under the misapprehension that Chief Superintendent Bruce had been nominated by the applicant as one of his referees. The Board was clearly entitled to make inquiries of Chief Superintendent Bruce in any capacity. The applicant also submitted that the Board failed to inquire into the accuracy of the matters raised in Chief Superintendent William's assessment of the applicant and failed to make the inquiries suggested by him. To appreciate this submission it is necessary to state further facts. Mention has already been made of the fact that at the time the applicant was selected for promotion to the subject position he was serving with the Australian Civilian Police Detachment, being part of the United Nations Peace-Keeping Force in Cyprus. He served in Cyprus from dune to December 1985 as Section Detachment Commander of that part of the Australian Civilian Police Detachment which was attached to the military unit of the United Nations Force responsible for Sector 4, a sector which encompassed the urban area of Nicosia. That part of the police detachment of police was under the operational control of the military commander of Sector 4 and there was a _— — 24. consequential need for the applicant to work closely with the commander of the military forces as well as with the local authorities. Included in the documents handed by the applicant to members of the Board at the commencement of his interview Was a report dated 15 December 1985 by Lieutenant Colonel R.B. Mitchell of the Canadian Military Forces who was at that time the Commander of Sector 4 of the United Nations Force. At the conclusion of his interview the applicant made available to the Board a further reference. That reference was dated 9 September 1985 and was given by the then Commander of Sector 4, Lieutenant-Colonel J.A.L. Bujold, also of the Canadian Military Forces. Both references were commendatory of the applicant. During most of the period that the applicant was serving in Cyprus the officer in charge of the Australian Civilian Police Detachment stationed there was Chief Superintendent Morley. Chief Superintendent Williams succeeded Chief Superintendent Morley, taking up duty in Cyprus on 27 September 1985. In the course of his interview with the Board, the applicant was invited to speak in relation to each of the selection criteria in turn and this he did. In relation to that part of the selection criteria dealing with interpersonal skills, the applicant was asked to speak generally about his skills in that regard, his attention being drawn to the circumstance that there were reports of ence Tay ener 25. his abrasiveness in his relations with fellow officers and other people. The applicant was shown, and invited to comment upon, a letter letter dated 30 October 1985 prepared by Chief Superintendent Williams but signed in his absence by Inspector F. Arthur. The letter read: "Inspector COOPER has applied for transfer to two overseas liaison posts, Hong Kong and Los Angeles and one Headquarters position, Personnel and Services. He has also applied for the vacant position of Chief Inspector, I.I.D. Chief Superintendent MORLEY left these applications for my comment and my assessment has been delayed as a result of Mr COOPER's absence on leave. 2. I would have preferred not to make an assessment so soon after my arrival in Cyprus, as I have not yet had the opportunity to observe Inspector COOPER in the course of his work, particularly in his relationships with others. However, on the basis of my previous knowledge and comments from the Deputy Commander, I would make the following observations, 3. Inspector COOPER has the technical knowledge and police experience to fill any of these positions. In sixteen years of police service he has gained experience ina variety of general duties and investigative areas. He has made good progress in achieving the rank of Inspector. 4. ~ His experience in Drug Operations particularly suits him for overseas liaison posts. His previous supervisors in this area would be in a better position to comment on these applications. His experience as an investigator would be of value in the position within I.I.D. 5. The Inspector has a reputation for impetuosity and a degree of abrasiveness in his relations with others. He tells me that he recognises his impetuosity and that he has worked hard to control it. He considers that he has made good progress inthis regard. I suggest that he still has some progress to make in this area. However, in fairness, I believe that since his arrival in Cyprus, there has been a failure to discuss these issues with him or to counsel him on his progress. 26. 6. My initial impression is that Mr COOPER is an intelligent officer with sound professional knowledge and experience. He has a _ proven ability to work hard and learn. I am confident that with proper guidance he will learn to relax a little and adequately Ccontrolj his impetuosity. 7. I would recommend that Inspector COOPER's previous supervisors be asked for more detailed comment." The letter was addressed to the Assistant Commissioner, Personnel and Services Department of the Australian Federal Police. It is apparent that those who were concerned in the selection process relating to the promotion of officers to a number of positions of Chief Inspector for which the applicant had applied had, for the purposes of the selection process, sought an assessment from Chief Superintendent Morley as the officer in charge of the Australian Civilian Police Detachment in Cyprus. As has already been mentioned, when the letter was forwarded to the Board it bore a notation indicating that it had not been received in Australia in time to be considered by the selection panel. Paragraphs 12 and 13 of the applicant's affidavit sworn on 19 June 1986 set out what he says relevantly took place at his interview by the Board: "12. I did not take a record of words spoken in the proceedings but to the best of my knowledge and recollection when we reached the portion of the job profile on page 3 headed 'Liaison Duties' Mr C.L. Hermes Chairman said words to the following effect: 'How do you get on with fellow officers and peers?' To the best of my recollection I answered: 'Reasonably well.' Mr 27. Hermes said: 'You've just come back from Cyprus. Would you comment on this document.' I was then handed a one page document dated 30 October 1985, signed by Inspector F. Arthur on behalf of Superintendent Williams. This document was critical of me. I said words to the effect: 'TI don't accept the allegations of impetuosity and abrasiveness.' I pointed out to the Board that in the document Chief Superintendent Williams did not purport to speak from his own experience and that accordingly what was said by him was hearsay. I also pointed out that Chief Superintendent Williams had only been in Cyprus for a short period of time and drew the attention of the Board to the references from Lieutenant Colonel Bujold and Lieutenant Colonel Mitchell 13. I was also asked: 'Have you ever had a reputation for abrasiveness?' I said: 'There have been occasions where I have had to be aggressive to get the job done.'" Mr Hermes, in his affidavit sworn on 2 September 1986 (par.9) agreed that the discussion was, in general, as outlined in par.12 of the applicant's affidavit. The notes made by Mr Hermes during the course of the interview record the following as having been said by the applicant: "T had.a difference of opinion in 1979 in what I considered incompetent prosecution. There was a complaint that I was unco-operative. I was a designated officer in Cyprus and had to investigate something about Williams. I agree that I was abrupt and aggressive. I knew I had to do 1t to get the job done. I have modified this since my days at the College." The reference to his days at the College appears to bea reference to his attendance in 1984 at the Fifth Australian Federal Police Officers Course. ——" Reference should also be made to par.8 of the affidavit sworn by Mr Hermes on 16 January 1987: "8. In the course of our discussion with Mr Cooper about the letter from Chief Superintendent Williams (Exhibit 'B' in these proceedings) Mr Cooper said words to the effect that he had had to investigate something about Mr Williams while he was on Cyprus. However, Mr Cooper added that he (Mr Cooper) did not want to take this matter any further and he did not make any specific allegation of bias against Mr Williams. For that reason the Board did not make any enquiries into the background to the letter." In my opinion, it has not been demonstrated that there was any obligation upon the Board to make inquiries, either of Chief Superintendent Williams or of any other person, as to the accuracy of what was stated in the letter dated 30 October 1985. Chief Superintendent Williams made plain in the letter the circumstances in which it came to be written and the basis upon which his comments were made. It was amatter for the Board to give such weight to those comments as "it? thought fit. It is obvious that what the Board did was to use the letter as a suitable vehicle by which to test one aspect at least of the applicant's interpersonal skills. It was how the applicant reacted to what was said in the letter rather than the inherent accuracy of its contents which was of significance to the Board. The applicant''s complaint that the Board did not make the inquiries suggested by Chief Superintendent ree yon eng Selisiichancnantors flay OD OS ep gen mere Serer ere en es seaa Aananier anamiemenaatilinmea einen shox teal! TY ' —~ a 29. Williams, that 1s to say inquiries of the applicant's previous supervisors, is but an aspect of the complaint that the Board failed to inquire of more than one of his referees and 1t is convenient to deal with it later under that head. The next matter on which the applicant relied is that the Board failed to make inquiry of the Ombudsman concerning any relationship which the applicant may have had with him. It is clear on the evidence that it did not make such inquiry. The question is whether it was bound to do so. The second respondent, in his statement in support of his appeal, had referred to his relationship with the Ombudsman's office during the period when he was acting in the position in question, namely that of Chief Inspector in the Internal Investigations Division (Canberra), from early September 1985 to the date of his statement, namely 30 November 1985. That aspect of his experience was also adverted to by Chief Superintendent Bruce. No reference was made by the applicant in any of the documentary material submitted by him to the Board to any dealings he had had with the Ombudsman's office nor is there any evidence that he referred to such dealings in his oral presentation to the Board. In his evidence before the Court the applicant said that there was an arrangement whereby the Chief Inspector in charge of the Internal Investigations Division (or the officer acting 1n that position) met with the Ombudsman each Tuesday for consultation. He said he had attended such 30. meetings during the period he had been acting in the position. That period was, of course, limited. At the time he was interviewed by the Board, he had acted in the position only from 3 to 12 January 1986 and from 27 January to 5 February 1986. The applicant had had an opportunity prior to his interview with the Board to read the statement made by the second respondent in support of his appeal and it is reasonable to suppose that, if he had had dealings with the Ombudsman which he thought supported his promotion, he would have mentioned them to the Board. I am unable to conclude that the Board was bound to make an inquiry of the Ombudsman to ascertain what (if any) dealings there had been between them and, if there had been such dealings, to seek information as to their nature and comment upon the manner in which the applicant had performed. The applicant also relied on the failure of the ~ ~ Board to inquire as to the acting rank held at various times by the applicant and the second respondent. The applicant's complaint appears to have its source in two passages in the Board's statement of reasons for its decision. The first passage appears under the heading "Police Experience" where the Board, speaking of the second respondent, states: "In November 1984 he went to IID (CInternal Investigations Division] and he remains there as Acting Chief Inspector." 31. The applicant complained that the statement that the second respondent was Acting Chief Inspector in the Internal Investigations Division (Canberra) on the date which the Board's statement of reasons bears, namely 14 February 1986, was -Lncorrect. He further said that on that date he, the applicant, was acting in that position. The facts are that within the Internal Investigations Division (Canberra) the second respondent acted in the position of Chief Inspector from 2 September 1985 to 2 January 1986 (with the exception of the period 4 - 10 November 1985 when he was Acting Superintendent) and from 13 to 26 January 1987. The applicant acted in the position from 3 to 12 January 1987 and from 27 January 1987 until 23 February 1986. Read literally, the statement by the Board is inaccurate but ~the inaccuracy is of no real significance. It may be that the provisions of reg.31 of the regulations required the Board to have regard only to the position as it existed at the time of the Commissioner's decision selecting the applicant for promotion, that is to say, on 14 November 1986. On that date the second respondent was, in fact, acting in the position. But be that as it may, it cannot seriously be contended that the Board would have regarded the very short period in which the applicant had acted in the position as being of material assistance to it in ee ee rion — ' ao a 32. resolving the issue of the relative efficiency of the two officers for promotion to the position. The second passage in the Board's statement of reasons relied upon by the applicant appears under the heading "Skill Requirement" and is in the following terms: "In respect of management and organisational skills the Board considers that the appellant Taylor has demonstrated this at _a higher level than the selectee" (emphasis added). Counsel for the applicant read the words "at a higher level" as equivalent to "at a higher acting rank", a reading which, in my opinion, the words do not bear. In my opinion, the Board was doing no more, and no less, than recording its conclusion that the second respondent had demonstrated, in respect of the selection criterion under discussion, a higher level of efficiency than had the applicant. That conclusion was not, I think, nor was it intended to be, dependent upon a finding of fact that the second respondent had acted at a higher rank than had the applicant. The matter was, however, complicated by the fact that in his affidavit sworn on 2 September 1986 (par.30) Mr Hermes said: "In relation to our assessment that Mr Taylor had demonstrated management and organisational skills at a higher level than had Mr Cooper, there was much evidence of this in the material before the Board. The police experience of the two men, summarised in our report, showed that Mr Taylor had been ata higher rank (Acting Chief woe epee ¥ we ee ee ee 33. Inspector) than had Mr Cooper (Acting Station Sergeant, two ranks lower and not a commissioned rank). The difference between the two men was also supported by the comments of the referees. I refer to the comments of Mr Brown in paragraph 19 above." Paragraph 19 of Mr Hermes affidavit recorded Mr (CChief Superintendent] Brown as commenting to the effect that the applicant had worked under him for many years and that he had lengthy CID experience but that that experience was "more at operational level -~- not a bit of command experience". In a later affidavit sworn on 17 October 1986, Mr Hermes corrected par. 30 of his earlier affidavit by substituting for the words in parenthesis after Mr Cooper's name (secondly occurring) the words "Acting Inspector and subsequently Inspector". The applicant contended that the amended version was still incorrect as he had acted in the rank of Superintendent during the time he served in the Drug Operations Branch and that he had so informed the Board during the course of his interview. It is by no means clear to me that he did so inform the Board. It is of some Significance that, in his statement in support of his promotion under the heading "Command Experience", the applicant relied on the fact that he had been responsible for Command Control over the Drug Operations Branch "as Second-in-Charge and from time to time as Officer-in-Charge" without indicating his rank or acting rank at the time. wee pee Son a pee pee rere if ge are eo i ah 34. During the course of the applicant's evidence before the Court 16 became apparent that it was only for a period of three weeks that he had acted in the rank of Superintendent and that was when he was acting as Officer-in-Charge of the Drug Operations Branch. I am satisfied that 1t would have been of no real significance to the Board in its deliberations to have been told that the applicant had acted in that rank for such a short period. The final matter relied upon under this head was that the Board failed to inquire of more than one of the applicant's referees and, in particular, failed to seek information from an officer (Superintendent Worthy) to whom the Board had been referred by the applicant's referee, Chief Superintendent Brown. It is also convenient to deal at this point with the complaint that the Board failed to make the inquiries suggested by Chief Superintendent Williams, that is to say inquiries of the applicant's previous supervisors. Shortly after the conclusion of the interviews with the parties to the appeals, the Board considered what inquiries it should make of referees and other persons. In his affidavit sworn 2 September 1986, Mr Hermes deposed to a telephone conversation which the members of the Board had with Chief Superintendent Bruce in relation to the applicant. Paragraphs 13 and 14 of that affidavit read: "13. Mr Bruce said that Mr Cooper had been under his command for a matter of a few SRO erag marries 2 pe ve . ' . , an rt ee. 35. weeks only. In those circumstances the Board raised with him only the matter of interpersonal skills. 14. Mr Bruce said in relation to interpersonal skills that Mr Cooper was 'abrasive. Not so far as to be aggressive. Somewhat immature considering his experience'." Mr Hermes' contemporaneous notes also recorded Chief Superintendent Bruce as saying of the applicant: "Keen investigative ability. He is trying very hard. Give him full credit. Seems peculiar that it was made, i.e. his selection for position." Immediately after the conversation with Chief Superintendent Bruce the Board had a telephone conversation with Chief Superintendent Brown of the Criminal Investigation Division. Paragraphs 18 - 25 of Mr Hermes' affidavit sworn 2 September 1986 recorded the conversation concerning the applicant: i "18. I then mentioned the names of the various parties to the appeal and said that the Board would first wish to seek his views about Mr Cooper's qualifications for the position. I said that it would be helpful to the Board if he would relate his opinions to the selection criteria for the position in question, and I read those criteria to him. 19. Under the heading 'Police Experience' he said that Mr Cooper had worked under him for many years and that he had lengthy CID experience. But added that this was 'more at the operational level - nota bit of command experience'. a) yee rene ey : ene) oe ee ee 20, 21. 22. 23. 24. 25. Chief Superintendent Brown had sworn an affidavit in this proceeding on 20 June 1986. 36. The next criteria was 'Management and organisational skills'. Asked for his opinion on this, he said: 'Very limited. Some management as second-in- command Drugs, but not a great deal'. I then asked him to give his opinion about Mr Cooper's interpersonal and oral skills. He said they were not high, only 'average'. He added that Mr Cooper was 'excitable'. At that stage I felt it appropriate to raise the question of abrasiveness, as that word had been used both by Mr Williams and Mr Bruce. Ido not recall the exact words of ny question but it was couched in a form which sought his opinion. He replied: 'TI have heard it but never had the problem'. He went on in words to the effect that he (Mr Brown) handled the situation by 'keeping him down under control'. I then asked Mr Brown to express an opinion as to the ideal profile fora candidate seeking the position under consideration. He replied: 'He needs a lot of sound judgement, maturity, depth of experience, overall professionalism and maturity. He would be involved in presenting material to the Commissioner.' I did not ask him whether he regarded Mr Cooper as being aman who qualified under that profile, as I regard this as a question for the Board's decision on the whole of the material before it." affidavit read: "3, I have first been asked to recall my conversation with Mr Hermes in February 1986. I have a recollection of the conversation 1n general terms, but not Paragraph 3 of that oe nn eee Sey — TT we eemenge wympevar wermewenmenes: " ane ane 37. in specific detail. Doing the best I can the conversation was to the following effect: Mr Hermes put to me a description of Mr Cooper to the effect that he was hard to handle and asked me to comment. I said words to the following effect:- 'I have heard that before but we (meaning the Criminal Investigation Division) had no problems with Cooper in that regard. He was disciplined with us and his officer in charge (Drug Operations) Superintendent Worthy could comment on that.' I was then asked by Mr Hermes in my capacity as a former member of the Internal Investigation Division to comment on the type of personal characteristics required of a member who worked in the Internal Investigation Division. To the best of my memory I replied to the following effect:- Such a person would require integrity, practical detective investigational experience, sound knowledge of the law and level headedness.' I was not asked whether Mr Cooper suited this profile. Mr Hermes then asked the other two members of the Board if they wished to ask me any question but both declined. The interview lasted no more than a minute or two." In cross-examination Mr Hermes did not agree that Chief Superintendent Brown''s version of the conversation was correct. In particular, he denied that he put to Chief Superintendent Brown "a description of Mr Cooper to the effect that he was hard to handle". He was unable to recall whether Chief Superintendent Brown had referred to Superintendent Worthy. Chief Superintendent Brown was not wayne gee ¥ > ¥ es mas Ae 38. cross-examined upon his affidavit. However, in so far as there is a conflict between Mr Hermes' evidence as to what was said and Chief Superintendent Brown's general recollection of the conversation, I prefer that of Mr Hermes supported as it is by his notes taken at the time. It is common ground that the Board did not make inquiries of any of the other officers nominated by the applicant as referees. When the matter was before the Court on 11 December 1986 the applicant sought to read affidavits sworn by Superintendent Worthy, Superintendent Harley and Chief Inspector Downing deposing to the fact that they had not been approached by the Board. In the light of the limited issues raised at that stage the affidavits were objected to and were admitted subject to objection. In the light of the amended application for an order of review, the affidavits are clearly admissible. During the hearing a good deal of attention was given to the question whether Chief Superintendent Bruce, who had been nominated as a referee by the second respondent, was spoken to by the Board as one of the applicant's referees or in his capacity as the officer currently in charge of him. In the final analysis I do not think the matter is of any real significance but, as it was the subject of conflicting evidence, I should express my findang upon it. 33. Mr Hermes' evidence was that Chief Superintendent Bruce had been nominated by the applicant as one of his referees during the course of his interview with the Board. The relevant part of the notes which Mr Hermes made during the course of the applicant's interview reads: "[Chief Supt Brown, WORTHY, HARLEY 3/4 months MORLEY, ? BRUCE" Mr Hermes' recollection was that, in answer to a question whether he wished to nominate referees, the applicant had mentioned the five names and he, Mr Hermes, had written them down as they were spoken. He was unable to explain the notation "3/4 months" preceding the name "Morley" and was uncertain why the question mark appeared before the name "Bruce", though he suggested it may have been because the applicant was uncertain whether that officer would wish to speak on his behalf. The applicant's evidence was that the only referees he nominated during his interview by the Board were the three names appearing in square brackets in Mr Hermes' notes. He said that the names of Chief Superintendent Morley and Chief Superintendent Bruce were given as names of officers under whom he had then recently served. He suggested that Mr Hermes had recorded "3/4 months" against the name "Morley" because that was the approximate period he had served under that officer. He also gave evidence that he would not have nominated Chief Superintendent Bruce as a wee eT ' 40. referee as he knew he was opposed to his selection for promotion. Superintendent R.G. Leffers, one of the members of the Board, gave evidence that he agreed with what was said by Mr Hermes in his three affidavits. In cross-examination, he agreed with the suggestion put to him that the applicant had said, in the course of his interview, that Mr Bruce was his commanding officer but that he had only been under him a very short time. The witness also said he recalled the applicant "nominating Mr Bruce". He said he believed that the only time the applicant mentioned Mr Bruce was when he was asked who was his current commanding officer. The other member of the Board, Chief Superintendent R.E. Dixon, had sworn an affidavit in the matter but he did not give oral evidence and was not required to attend for cross-examination. ™. In my opinion, Mr Hermes was mistaken in his recollection that Chief Superintendent Bruce was put forward as one of the applicant's referees. His evidence in this regard differs from that of the applicant and of Superintendent Leffers. The notes which Mr Hermes made at the time of the interview also, I think, tend to support the view that Chief Superintendent Bruce was referred to as being the applicant's commanding officer within the Internal Investigations Division. Its juxtaposition to the reference to Chief Superintendent Morley and the notation "3/4 er peepee = Ye " Le oh 41. months", a plausible explanation for which was given by the applicant, are significant. On the evidence, I find that Chief Superintendent Bruce was not nominated by the applicant as one of his referees. The substance of the applicant's complaint is that the Board did not inquire of Superintendent Worthy under whom the applicant had served in the Drug Operations Branch within the Criminal Investigation Division. That complaint, as I have already said, must be considered in the context of the material, documentary and oral, which the Board then had before it and against the background of the Board's perception at that time that the most likely basis for differentiating between the relative efficiency for the subject position of the applicant and the second respondent would be found ina consideration of one of the matters listed as essential under the selection criterion "Skill requirement", namely demonstrated interpersonal skills. That perception had been gained from a consideration of the documentary material, the comments made by Chief Superintendent Bruce and Chief Superintendent Brown and, most importantly, by the manner in which the applicant had conducted himself when dealing during the course of his interview with the letter dated 30 October 1985 setting out the assessment made by Chief Superintendent Williams. As the Board said in its reasons for decision: "It appeared to the Board that this subject rankled with the selectee and he became rather defensive complaining that it would seem that he was not being given the chance to live the reputation down." a oe: Fe ete 42. Mr Hermes gave further detail of this in his cross-examination. Speaking of the applicant, he said: "He displayed both by his speech and by the aggressiveness of reaching forward, pushing his face forward, getting quite annoyed, obviously, that he did not in the situation which the Board might have expected that he would want to he careful and not create the wrong impression, he immediately created an atmosphere of hostility and aggression," Against that material the Board had before it the references given to the applicant by Lieutenant-Colonel Mitchell and Lieutenant-Colonel Bujold, the latter being described by the Board in its reasons for decision as "a glowing reference". Another relevant matter was that the applicant had recognised that he had demonstrated in his dealings with others a deficiency in his interpersonal skills, his contention being that his skills in this regard had improved since he completed the Fifth Australian Federal Police Officers Course in 1984. Tt was against that background that the Board approached Chief Superintendent Brown who had been nominated by the applicant as his primary referee. His comments upon the applicant in relation to the selection criterion "Skill requirement" can hardly be said, on an objective reading of them, to have been supportive of the applicant's claim. Nor would his comment that he had heard of the applicant's agressiveness but had never had the problem because he cer wet yew pe ee Ay - a i et teen Woe 43. handled the situation by "keeping him down under control" have dispelled to any extent the concern which the Board had as to the applicant's suitability for the position vis-a-vis the second respondent. It must also be borne in mind that Chief Superintendent Brown was a person for whom the applicant had worked "for many years" in the Criminal Investigation Division. One of the branches in that division was the Drug Operations Branch of which Superintendent Worthy was in charge during the period, or at least a substantial part of the period, during which the applicant worked in that branch. While, according to Chief Superintendent Brown's affidavit (par.3) he mentioned that Superintendent Worthy could comment upon the applicant's performance in that branch, there is nothing in the evidence before me to suggest that Chief Superintendent Brown considered that he, himself, did not have sufficient knowledge of the applicant to answer the Board's questions. i] It is not enough for the Court to conclude, with hindsight, that it might have been prudent, particularly having regard to the present proceeding, for the Board to have approached Superintendent Worthy or other of the officers nominated by the applicant as referees. The question is whether the Board's omission to do so in all the circumstances of the case demonstrates a departure from its duty under reg.3l(d) such that its decision should be set aside. In considering this question it must not he are 44. forgotten, though it cannot, of course, be decisive, that reg.3l(c) expressly recognises that there is a discretion in the Board in relation to obtaining the views of any referee nominated by a party. - Having given the matter very careful consideration, I have reached the conclusion that the Board, taking the view, as it did, that the applicant had by his conduct before the Board demonstrated what was in its view a serious deficiency in his interpersonal skills, was entitled to take the view that it would not be further assisted by making inquiries of other persons nominated by the applicant as referees. In my opinion, the applicant has not established any of the matters upon which reliance was placed to show that the Board failed to carry out the duty imposed upon it by reg.31(d) to make full inquiries into the claims of the applicant and the second respondent. Natural Justice I am unable to accept the submission put on behalf of the applicant that the Board failed to give the applicant a real opportunity to put his own case. I am also unable to accept the submission that the Board failed to put to the applicant, or give him an opportunity to comment upon - (i) The relative merit and status of the courses of study undertaken by the applicant and the second respondent; ne ene San ee ee a ve —— ev = . 45. (ii) The relative police experience of the applicant compared to that of the second respondent; or (iii) The relative management and organisational skills of the applicant compared to those of the second respondent. The applicant was, prior to his interview with the Board, given access to the documentary material presented to the Board on behalf of the appellants against his selection for promotion, including the material submitted by the second respondent. The material relating to the second respondent dealt in considerable detail with the courses of study he had undertaken -and his police and other experience. The applicant himself presented a lengthy statement which was supplemented by further written material at his interview with the Board. That interview extended over a period of an hour anda half. I accept that, in the course of that interview, the applicant was informed that the Board would be sitting for a further two days during which time he could, if he wished, make further representations to the Board. In the course of his evidence before the Court, the applicant did not suggest at any stage that he had not had a full opportunity to put before the Board the whole of the material and representations by which he sought to support his selection. It was also submitted on behalf of the applicant that there had been a denial of natural' justice in that the Board took into account material of an adverse nature relating to the applicant's character and his interpersonal skills without disclosing or referring that material to the are a | aatuupieeliiten iarnandli-meaetameed ve ws 28 ee ae ee Tm rey pe aw 46. applicant or providing him with the opportunity of commenting on or refuting such material. It is primarily to the comments upon the applicant made by Chief Superintendent Bruce in answer to the Board's inquiry of him that this submission refers. Reference was, however, made in argument to an assessment of the applicant made by Chief Inspector J.B. Burrows on 23 August 1984 to which Mr Hermes referred in the course of his evidence. Reference has already been made to what was said to the Board by Chief Superintendent Bruce. His comments were made in response to an inquiry concerning the applicant's interpersonal skills. That topic had been raised specifically by the Board with the applicant and was the subject of considerable discussion. Chief Superintendent Bruce's comments did not relate to specific events or instances but were of a general nature. They were not new and the substance of them had been put to the applicant and he was given a proper opportunity to answer them. ~ The document signed by Chief Inspector Burrows recorded his assessment of the applicant apparently as part of a staff appraisal scheme requiring periodic evaluation of an officer's performance by a_ senior officer. The assessment was in the following terms: "Inspector COOPER is an eager young man sometimes intolerant of old established ideas. He will realise the necessity for considered opinions and decisions as he increases his experience. He worked directly to me during his last weeks in this Region and I found many of his views and om me v tree ee were ee pee te ee pe ere ee eo eee + ai ee eres et ere rene ote Lo ake . 47. ideas refreshing and based on commonsense. He works with an incessant rush and at times appears abrasive to people who do not' know him. Any fauits, however, are brought about by over~enthusiasm. I believe he has great potential and it is up to his future supervisors to develop this to the full. I think he has a good future in the service." The document also bore an endorsement dated 23 August 1984 signed by the applicant as follows: "T have read the Part I report and discussed it with the appraiser. I wish to add the following comments/observations:- Overall assessment accepted as being fair. Ability to liaise, converse and negotiate has developed as result of completion 5th AFP Officers Course and present position in Drug Operations." The document was not referred to in Mr Hermes' notes, or by the Board in the statement of reasons for its decision, or in any of the affidavit material put before the Court. It is not the subject of any of the grounds of review as "set out in the applicant's much amended application. It was mentioned for the first time by Mr Hermes in the course of his cross-examination, the witness saying that the document was in the papers before the Board, that it was shown to the applicant and that it was mentioned during the course of his interview. The applicant had no recollection of the document having been shown to him or of it being discussed. However, in answer to the question whether he produced it to the Board he replied: "I cannot recall". This answer appears to indicate that he was well aware of the document at the time of his interview and this a were ae ee eee sree ee 48. is consistent with his evidence that he took with him to the interview a personal file of documents | concerning his career. It is reasonable to assume that Chief Inspector Burrows' assessment might have been included in such a file. Superintendent Leffers' evidence was that he did not recall ever seeing a document signed by Chief Inspector Burrows. Chief Superintendent Dixon gave no evidence. That being the state of the evidence, I am not satisfied that the document was part of the material before the Board. It follows that I am not satisfied that its contents were taken into account by the Board, or any of its members, in determining the second respondent's appeal against the applicant's selection for promotion. But, even if I be wrong in that, the assessment made by Chief Inspector Burrows falls within the same class of material as the comments by Chief Superintendent Bruce. I am satisfied that the substance of the assessment was put to the applicant in the general discussion concerning his interpersonal skills and that he had a proper opportunity to deal with that general question. A further submission was put on behalf of the applicant that he had no adequate opportunity to meet the matters raised in the assessment of Chief Superintendent Williams or the assessment relating to the applicant's attendance at the Fifth Australian Federal Police Officers Course. Ft en nee ee 49. I have already dealt at some length with the circumstances surrounding the use made by the Board of the assessment of the applicant made by Chief Superintendent Williams. The short answer to the present submission is that the applicant agreed in cross-examination that he had put to the Board everything he wished to say in relation to that assessment. In those circumstances the submission cannot be upheld. The assessment of the applicant's performance at the Fifth Australian Federal Police Officers Course was a document included by the applicant in the documents he took with him to the interview with the Board as being a document relevant to the issues with which the Board had to deal and one which he considered would be the subject of discussion. It was referred to in the course of his interview and, as the members of the Board did not have a copy, he made copies available for their use. I am unable to appreciate how, in those circumstances, it can be said that he had no adequate opportunity to speak to the matters recorded therein. No Evidence to Justify Decision To succeed in this submission the applicant must bring the case within either par.(a) or par.(b) in s.5(3) of the Judicial Review Act. In the light of what has already been said, he has failed to do so and the submission must be rejected. In my opinion, there was material before the Board upon which it could be satisfied that the second respondent had demonstrated that he was more entitled to , oe qa oo me Ee oe me pee =o: lee =e na see ey ene ee eee q rn nee uo 50. promotion to the vacant position than the applicant. It is, of course, no part of the Court's function to consider what decision it would have reached upon the material that was before the Board. Improper Exercise of Power The submission that there was an improper exercise of power had two aspects. It was said that the Board had failed to take into account relevant considerations. The matters relied upon under this head have already been canvassed adequately in dealing with other of the submissions made on behalf of the applicant and need not be further considered. It was also said that the Board had taken into account irrelevant considerations, namely (a) That the second respondent had acted in a higher rank than had the applicant; and (b) The appraisal of Chief Superintendent Bruce, being an appraisal made after 14 November 1985. As to the first of these matters, I have already expressed my opinion that the reasons given by the Board for its decision do not involve a finding to that effect but that, even if they do, the matter was of no sufficient significance to warrant the decision being set aside on that account. Sl. The second matter has its genesis in that part of reg.3l1 of the regulations which requires the Board to have regard to the relative efficiency of the parties for promotion to the position "at the time of the decision of the Commissioner", in this case 14 November 1985. It was submitted that, as Chief Superintendent Bruce had not joined the Internal Investigation Division (Canberra) until after 14 November 1985, he must have been commenting upon the applicant's performance after that date with the consequence that the Board was precluded from taking his comments into account. In my opinion, this submission is based on a misconception of the true meaning and effect of reg.31. The Board is clearly required by that regulation to determine the relative efficiency of the parties as at the time of the Commissioner's decision. It may well follow that a party to an appeal, be he the selectee or an appellant, may not rely, in seeking to support his claim to superior efficiency, on events occurring after that time. For example, he may gain no advantage from the circumstance, if it be the fact, that he has acted in the subject position between the date of the Commissioner's decision and the hearing of the appeal. But, even if that be so, it does not follow that the Board cannot receive information from referees or other persons on a matter such as the personal characteristics of a party simply because the information relates to events or observations which occurred after the date of the relevant decision. Information of that kind would appear to me to be ee ae sane ee ae ee. 52. clearly relevant to the assessment of the party's efficiency as at the prescribed date and is not excluded from the Board's consideration by reg.31. Conclusion For the reasons given above, the application is dismissed. The applicant must pay the respondents' costs, including reserved costs. I certify that this and the preceding 51 pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Neaves. Vekw Broun . Associate Dated: 15 September 1987 Counsel for the applicant Mr F.J. Purnell Solicitors for the applicant Snedden Hall & Gallop Mr C.M. Erskine Australian Government Solicitor Counsel for the first respondents Solicitor for the first respondents Counsel for the second respondent : Mr I.W. Nash Solicitors for the second respondent: Abbott Tout Creer & Wilkinson Dates of hearing 11 December 1986, 29, 30 January 1987 and 2 February 1987 Mr P.L.R. Sheils, 0.C. and he en woe